elaws - employment laws assistance for workers and small businesses

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Family and Medical Leave Act Advisor

If an employee submits a complete and sufficient certification signed by a health care provider, the employer may not request additional information from the health care provider.

However, the employer may contact the employee's health care provider for purposes of clarification and authenticationafter the employer has given the employee an opportunity to cure any deficiencies. To make such contact, the employer must use a health care provider, a human resources professional, a leave administrator, or a management official. Under no circumstances, however, may the employee's direct supervisor contact the employee's health care provider.

Authentication means providing the health care provider with a copy of the certification and requesting verification that the information contained on the certification form was completed and/or authorized by the health care provider who signed the document. No additional medical information may be requested, and the employee's permission is not required in order to request authentication.

Clarification means contacting the health care provider to understand the handwriting on the medical certification or to understand the meaning of a response. Employers may not ask health care providers for additional information beyond that required by the certification form.

Contact between the employer and the employee's health care provider for purposes of clarification must comply with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule.

If an employee chooses not to provide the employer with authorization to clarify the certification with the employee's health care provider, and does not otherwise clarify the certification, the employer may deny the taking of FMLA leave if the certification is unclear.

It is the employee's responsibility to provide the employer with a complete and sufficient certification or to provide the health care provider with sufficient authorization to clarify the certification if necessary.

Medical Certification Abroad

In circumstances when the employee or family member is visiting in another country, or a family member resides in another country, and a serious health condition develops, the employer must accept a medical certification (as well as second and third opinions) from a health care provider who practices in that country. Where a certification by a foreign health care provider is in a language other than English, the employee must provide the employer with a written translation of the certification upon request.